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ELRCPartially AllowedPetition No 50 of 2020· [2021] KEELRC 1537 (KLR)

Kamande v Judicial Service Commission (Petition 50 of 2020) [2021] KEELRC 1537 (KLR)

Employment and Labour Relations Court
18 June 2021
9,446 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court reinstated a Judiciary staff member wrongly dismissed, ruling that Employment Act protections apply fully to Judicial Service Commission discipline.

What this practically means

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Executive summary

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The Petitioner, employed by the Judicial Service Commission as Principal Administration Officer, Human Resource Directorate, served on the tender evaluation committee for security services tender Jud/028/2016-17. After a failed bidder, Eric Okeyo t/a Bedrock Security Services, successfully sought review before the Public Procurement Administrative Review Board, which found the Petitioner had met a Bedrock employee at night and directed investigations, the Chief Justice interdicted the Petitioner and preferred two charges of gross misconduct: meeting a bidder during the tender process, and failing to declare a conflict of interest. A committee heard the Petitioner and two witnesses; Okeyo never appeared and gave no statement. The Commission dismissed the Petitioner on 27th March 2019. The Petitioner petitioned the Employment and Labour Relations Court alleging violations of Article 47, Rule 25 of the Judicial Service Act Third Schedule, the Fair Administrative Action Act and the Employment Act, seeking declarations, compensation and reinstatement. Rika J held that the Petition was procedurally sound; that the Employment Act, the Judicial Service Act and the Fair Administrative Action Act all applied cumulatively to the Petitioner's contract; that the process was procedurally unfair for want of any internal investigation or investigation report and for closing the hearing without securing Okeyo's evidence despite power under Article 252(3)(b) to issue summons; and that neither charge was substantively established. The dismissal was declared unfair, unlawful and unconstitutional and set aside. The court declined to remit for a fresh hearing, citing double jeopardy and the 23-month delay, and ordered reinstatement or, alternatively, re-engagement to an equivalent position without loss of benefits, allowances and salary, refusing additional compensation on the basis that reinstatement with back-pay is adequate. There was no order on costs.

Key legal issues

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01

Applicable statutory regime governing discipline of Judiciary staff

Holding

The Petitioner's contract was governed cumulatively by the Employment Act, the Judicial Service Act and the Fair Administrative Action Act; no one Act applied to the exclusion of the others.

Reasoning

Judiciary staff are not among the categories excluded from the Employment Act under Section 3, and no Cabinet Secretary order excluded them. The Employment Act sets minimum standards against which the Judicial Service Act regime must be measured. The Fair Administrative Action Act has a wide scope covering state agencies exercising quasi-judicial functions and was expressly held in Mbalu Mutava to apply to such bodies.

p. 9
02

Mode of initiating the dispute - Petition versus Claim

Holding

The Petition was procedurally sound; litigants may choose either a Petition or a Statement of Claim before the E&LRC.

Reasoning

Rule 7 of the E&LRC Procedure Rules is permissive and allows enforcement of constitutional rights even in a Statement of Claim. The Respondent identified no rule rendering the Petition untenable, and judicial review underpinning has shifted to Article 22(3) of the Constitution.

p. 10
03

Procedural fairness of the disciplinary process

Holding

The process was procedurally unfair: there was no internal investigation or investigation report, and the hearing was fatally flawed by the Respondent's failure to procure the evidence of the star witness, Erick Okeyo.

Reasoning

The 3rd Schedule to the Judicial Service Act required a committee to investigate before the hearing; none did. Okeyo, the principal complainant whose allegations founded the charges, never gave evidence, swore an affidavit or recorded a statement before the committee, yet the Respondent had power under Article 252(3)(b) of the Constitution to summons him. Closing proceedings on the basis that he had gone underground was improper.

p. 14
04

Substantive fairness - whether the charges were established

Holding

Neither charge was established; there was no valid reason justifying termination under Sections 43 and 45 of the Employment Act and Rule 25(10) and (11) of the 3rd Schedule.

Reasoning

Without Okeyo's evidence the integrity charge could not be sustained; the Petitioner's contact with Bedrock was routine given his supervisory role over existing service providers. The conflict-of-interest charge failed because the Respondent itself placed the Petitioner in the perceived conflict by appointing him to the evaluation committee.

p. 15
05

Remedies - reinstatement, re-engagement and compensation

Holding

Proceedings and dismissal set aside; the Petitioner to be reinstated or alternatively re-engaged to an equivalent position without loss of benefits, allowances and salaries; no compensation in addition.

Reasoning

Remitting the matter back would expose the Petitioner to double jeopardy and compound the Article 47 violation, the process having already lasted 23 months against a 6-month policy. Reinstatement with back-pay is an automatic remedy once dismissal is adjudged unlawful, and may not be granted simultaneously with monetary compensation.

p. 16

Legal principles established

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  • The Employment Act applies to Judiciary staff; the Judicial Service Act does not apply to the exclusion of the Employment Act
  • The Fair Administrative Action Act applies to the Judicial Service Commission in disciplinary proceedings against staff
  • Where applicable written law requires an investigation separate from the disciplinary hearing, investigation must precede the hearing
  • A party may not proceed by petition rather than statement of claim only where procedure is permissive; both modes are open before the E&LRC
  • Once dismissal of a state or public officer is adjudged unlawful, null and void, reinstatement ought to be automatic and should not be granted simultaneously with monetary compensation
  • A constitutional petition is a procedurally sound mode of bringing an employment dispute before the E&LRC

Court orders

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  1. 1.It is declared that proceedings and determination to dismiss the Petitioner were unfair, unlawful and unconstitutional, and are hereby set aside
  2. 2.It is declared that proceedings and determination violated Sections 41, 43 and 45 of the Employment Act; Rule 25 the 3rd Schedule, Judicial Service Act; the Fair Administrative Action Act; and Article 47 of the Constitution
  3. 3.The Respondent shall reinstate the Petitioner to the position of Principal Administrative Officer, Human Resource Directorate, without loss of benefits, allowances and salary
  4. 4.Alternatively, the Respondent shall re-engage the Petitioner to a position equivalent to Principal Administrative Officer, without loss of benefits, allowances and salary
  5. 5.No order on the costs

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 20, 22(3), 41, 47, 171, 172(1)(c), 227, 236, 252(3)(b), 259, 260
  • Employment ActSections 3, 6, 26, 41, 42, 43, 44, 45, 47(5)
  • Judicial Service ActSections 32, 106-109 (as cited by parties), Third Schedule Rule 25, Regulation 16, Section 23
  • Fair Administrative Action ActSection 4(1)(c), 4(3)(g), 4(4)(c), Section 12
  • Public Procurement and Asset Disposal Act, 2015Sections 46(4), 65, 80
  • Evidence ActSections 106, 107, 108, 109
  • Employment and Labour Relations Court [Procedure] Rules, 2016Rule 7
  • Constitution of Kenya [Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules, 2013not specified
  • Law Reform ActSections 8 and 9
  • Civil Procedure RulesOrder 53
  • Armed Forces ActCap.199 (definition)

Cases cited (21)

  • J. Makokha & 4 others v. Lawrence Sagini & 2 others
    [1994] e-KLR
  • Judicial Service Commission v. Gilbert Mwangi Njuguna & another
    [2019] e-KLR
  • County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others
    [2015] e-KLR
  • Apollo Mboya v. Judicial Service Commission & another; Justice Kalpana Rawal & 4 [Interested Parties]
    [2020] e-KLR
  • Timothy Nchoe Sironka v. Judicial Service Commission
    [2020] e-KLR
  • George Kingi Bamba v. National Police Service Commission
    [2019] e-KLR
  • Kenya Human Rights Commission & Another v. Non-Governmental Organizations Co-ordination Board and Another
    [2018] e-KLR
  • Omunyokol v Attorney- General [Civil Appeal No. 06 of 2012]
    [2012] UGSC 4
  • National Bank of Kenya v. Anthony Njue John
    [2019] e-KLR
  • Judicial Service Commission v Mbalu Mutava & Another
    [2015] e-KLR
  • Mohammed Sheria & 2 others v. Simon Kipkorir Sang & 5 others
    [2018] e-KLR
  • Anarita Karimi Njeru v. Republic
    [1978] KLR
  • Pertonella Nellie Chirwa v. Transnet Ltd
    [2007] ZAAC 23
  • Wiseman v Bornean
    [1969] 3 All ER 275
  • Republic v Public Procurement Administrative Review Board & 3 others
    [2017] e-KLR
  • Attorney- General & Another v Andrew Maina Githinji & Another
    [2016] e-KLR
  • Judicial Service Commission & Another v. Lucy Muthoni Njora
    [2021] e-KLR
  • James Mugeria Igati v Public Service Commission
    [2014] e-KLR
  • Nkatha Joy Faridah Mbaabu v. Kenyatta University
    [2016] e-KLR
  • Elizabeth Wakanyi Kibe v Telkom Kenya Limited
    [2014] e-KLR
  • Parliamentary Service Commission v Christine Mwambua
    [2018] e-KLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Rule 7 of the E&LRC [Procedure] Rules, 2016, permitting enforcement of constitutional rights (Article 47); Article 172(1)(c) of the Constitution on discipline of Judiciary staff

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kamande v Judicial Service Commission (Petition 50 of 2020) [2021] KEELRC 1537 (KLR)", Case Analysis (2021). Petition No 50 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1537/eng@2021-06-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.